Police condone covert Internet surveillance

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Phorm Inc. is a London-based digital technology company, which sells, among other things, targeted advertising on web pages to companies. Its new technology is built to better target this advertising by tracking users' browsing habits using 'deep packet inspection'.

While traditional internet advertising systems only allow the owners of particular websites to see their visitors, Webwise can collect detailed information on the users' personal browsing history because they run in partnership with ISPs themselves. As the plans currently stand, this means that, if your ISP is running this technology, your browsing details will be sent to Phorm - unless you manually opt-out on every browser that uses your network system.

The information Phorm will receive includes not only the URL (or web address) of every page you visit, but the entire content of every single web page, except encrypted ones. Once this is in operation, they will be able to read your mail on most forms of web-based email, your posts on blogs and forums, your Internet searches, and the content of most web forms you complete.

The ISPs currently developing this scheme are BT, Talk Talk and Virgin Media, the three most popular ISPs in Britain. BT are the only company known to have tested this technology, the legality of which has been questioned by the European Commission, which has asked the UK government about why no action was taken over the trials, and about future deployments of the technology.

Suffering from a dramatic fall in its shares since this issue became public, Phorm has been forced to engage a number of public relations advisers, including Freuds, Citigate Dewe Rogerson and ex-House of Commons media adviser John Stonborough, in an attempt to save its reputation.

Predictably, it seems the City police are doing their bit to help the cause of Internet spying. They have declared that no criminal offence has been committed by conducting these secret trials, citing a "lack of criminal intent" on behalf of BT and Phorm, and "implied consent" on behalf of BT's unsuspecting customers.

In an email to Alex Hanff, the anti-Phorm campaigner whose dossier to the City of London Police initiated the investigation, detective sergeant Barry Murray stated that this "implied consent" is proved by the 'fact' that "the aim was to enhance their products." This, of course, makes no logical, or legal, sense. As Nicholas Bohm, lead counsel at the technology law think tank the Foundation for Information Policy Research, pointed out, "There was never any behaviour by BT customers that could be interpreted as implied consent because they were deliberately kept in the dark... As for the issue of whether there was criminal intent, well, they intended to intercept communications. That was the purpose of what they were doing. To say that there was no criminal intent is to misunderstand the legal requirements for criminal intent."

The argument that the customers 'consented' because the aim was to 'enhance their products' also shows how corporate interests are often translated as public interest nowadays. As David Winder notes, “??if the UK Government can pick and choose when data protection and privacy can be sacrificed for the greater good, then why not the corporate sector as well."

On 28 September, 2008, it was announced on one of BT's Community Forums that a subsequent trial would take place on 30 September, affecting up to 10,000 users for a four-week period. As with the earlier trials, it will be impossible to completely 'opt-out' of.

For more information, see www.inphormationdesk.org, www.badphorm.co.uk, http://phormwatch.blogspot.com and www.theregister.co.uk/2008/02/29/phorm_roundup/.